elements of evidence

Question 1

purpose of evidential law

Answer 1

s6 of EA 2006 aims to secure the just determination of proceedings

a) providing for facts to be established by application of logical rules; and
b) providing rules of evidence that recognise the importance of the rights affirmed by the NZBORA 1990; and
c) promoting fairness to parties and witnesses; and
d) protecting rights of confidentiality and other important public interests; and
e) avoiding unjustifiable expense and delay; and
f) enhancing access to the law of evidence

Question 2

what makes good evidence

Answer 2

facts that prove the charge - facts must prove elements of charge and evidence should be made up of facts that prove the charge

facts in issue - facts which in law need to be proven to succeed with the case. in criminal cases the facts in issue are usually those which are alleged by the charging document and denied by a plea of not guilty

circumstantial evidence - is a fact from which the judge or jury may infer the existence of a fact in issue. as such it offers indirect proof of a fact in issue

Question 3

what are facts in issue

Answer 3

facts which:

• the prosecution must prove to establish elements of offence; or
• the defendant must prove to succeed with a defence in respect of which he or she carries the burden of proof

Question 4

what is circumstantial evidence

Answer 4

evidence of circumstances that do not directly prove any fact in issue but which allow inferences about the existence of those facts to be drawn (eg. the defendant was seen in the vicinity of the crime)

Question 5

what is the general rule regarding establishing facts

Answer 5

all facts in issue and facts relevant to the issue must be proved by evidence

Question 6

what are the exceptions to the general rule re establishing facts

Answer 6

the two main exceptions are when no evidence needs to be given because:

• judicial notice is taken
• the facts are formally admitted

Question 7

what is judicial notice

Answer 7

when a court takes judicial notice of a fact it declares it will find that the fact exists or will direct the jury to do so even though evidence has not been established that the fact exists. Eg. the date of christmas day, rather than calling in an expert witness to swear christmas is celebrated in NZ on 25th December, judicial notice is taken that is the date

Question 8

when can judicial notice not be taken

Answer 8

a sexual complainant is under the age of 16 years

Question 9

what are facts formally admitted

Answer 9

facts that counsel in either party can accept as proven so it need not be discussed and therefore dispense with proof of that fact

Question 10

presumption of law

Answer 10

inferences expressly drawn by law from particular facts may be conclusive and rebuttable eg a conclusive and irrebuttable presumption would be a child under 10 cannot be convicted

Question 11

presumptions of fact

Answer 11

are those that the mind naturally and logically draws from the given facts. eg one presumes that a person has guilty knowledge if they have possession of recently stolen goods.

presumptions of fact are logical inferences and so are always rebuttable.

Question 12

principles to determining admissibillity

Answer 12

evidence is admissible if it can be legally received by a court. In determining whether evidence is admissible the courts have reference to certain principlesof evidence law including:

• relevance
• reliability
• unfairness
• public interest

Question 13

section 7 - fundamental principle that relevant evidence admissible

Answer 13

1) all relevant evidence is admissible in a proceeding except evidence that is:

a) inadmissible under this act or any other act; or
b) excluded under this act or any other act

2) evidence that is not relevant is not admissible in a proceeding
3) evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding

Question 14

relevance

Answer 14

evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding. It includes both direct and circumstantial evidence.

Question 15

direct evidence

Answer 15

evidence given by a witness as to a fact in issue that they have seen, heard or otherwise experienced. eg an eye witness who states they saw the defendant stab the complainant

Question 16

what is the general exclusion rule

Answer 16

s8 of EA 2006:

1) in any proceeding the judge must exclude evidence if its probative value is outweighed by the risk that the evidence will

a) have an unfairly prejudicial effect on the proceeding; or
b) needlessly prolong the proceeding

2) in determining whether probative value is outweighed by the risk that the evidence will have an unfairly prejudicial effect on proceedings, the judge must take into account the right of the defendant to offer an effective defence

Question 17

what is the s8 test

Answer 17

it involves balancing the probative value of evidence against the risk that it will:

• have an unfairly prejudicial effect on the proceeding or
• needlessly prolong the proceeding

Question 18

specific restrictions aside, if evidence is admitted for what purpose can it be used

Answer 18

once admitted it can generally be used for all purposes: “the statute proceeds on the basis that generally speaking evidence is either admissible for all purposes or it is not admissible at all - Hart v R

Question 19

what is voir dire

Answer 19

section 15 of EA 2006 governs evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding. Such a hearing is commonly referred to as a voir dire, particularly where the jury is excluded from the courtroom for the duration of admissibility hearing.

facts determined at a voir dire are sometimes referred to as preliminary facts.